Seguin v. Xstrata Nickel, 2012 HRTO 15

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rejean Seguin

Applicant

-and-

Xstrata Nickel

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: January 4, 2012

Citation: 2012 HRTO 15

Indexed as: Seguin v. Xstrata Nickel

APPEARANCES

Rejean Seguin, ) Self-represented Applicant ) )

Xstrata Nickel, ) Martin J. Addario Respondent ) Counsel

INTRODUCTION

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination on the basis of disability.

2By Case Assessment Direction, November 28, 2011, the Tribunal, on the request of the respondent, directed that the matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The applicant was directed to be prepared to describe what evidence he intends to call to link his allegations about his opportunities at work with his medical restrictions.

ANALYSIS

Summary Hearings

3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

5As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

Application to the Facts

6There are a number of facts set out in the written material filed by the respondent which are not in dispute. On February 9, 2009 the respondent announced a downsizing of its Sudbury operations that resulted in the layoff of 700 employees, 585 of whom were in the applicant’s bargaining unit. As a result, the bumping procedure in Article 17 of the applicant’s Collective Agreement was engaged.

7Prior to the downsizing, the applicant was working as a Plateworker in Central Services. He had physical restrictions which were being accommodated. Central Services closed down as a result of the downsizing and the applicant’s classification was eliminated. Under the bumping procedure the applicant would have to find a junior employee to bump in a different classification or face a layoff.

8The applicant’s preference was to be bumped into a Plateworker/Welder position. At the time of the downsizing he did not have the necessary qualifications to be bumped into a welding-related position. The applicant was given 30 days to obtain the necessary welding certificates, which he did, and as a result he was permitted to bump a junior employee in a Welder position in the Mill. There was no loss of income for the applicant as a result of bumping into this position.

9The applicant argues that the Plateworker/Welder position is a better fit with his trade experience and his accommodation needs. The respondent disagrees. The applicant raised his concerns with the Union, however, there was no grievance filed as a result of the applicant being placed in the Welder classification during the bumping procedure.

10By the time of the Summary Hearing it had been determined the applicant could not be accommodated in his position as a Welder and as a result he was working in an alternative position with no loss of income.

11The dismissal of an Application at the summary hearing stage requires very careful consideration of the materials and submissions of the parties. Both parties were given an opportunity to address the question how the Code is engaged by the applicant’s allegations. There is no doubt that the applicant feels that he has been treated unfairly. However, the applicant does not allege a failure to accommodate. He alleges that he is not working in what he considers his ideal position. The duty to accommodate does not require an employer to place an employee in the position that the employee considers ideal and in that sense, this application is premature. Until such time as there is a failure to accommodate the applicant, there is no role for the Tribunal to intervene in the dispute between the parties.

12Accordingly, there is no reasonable prospect that the Application will succeed and it is dismissed.